Professional Documents
Culture Documents
2d 346
The principal issue common to both defendants is whether the court erred in
denying a motion to suppress certain evidence found during a warrant search of
a clandestine amphetamine laboratory. It is claimed that this evidence was
tainted by the illegal use of an electronic tracking device attached to a container
of ether. The signal from this was located in the laboratory where the controlled
substance was produced. The Federal Drug Enforcement Administration agents
installed this device in a drum of chemicals purchased by Ingram.
3
Other points raised by Ingram herein are, First, that his Fifth Amendment right
not to be placed twice in jeopardy for the same offense was violated. This, he
argues, was a consequence of the granting by the court of the mistrial (on his
motion). A Second point on behalf of Ingram attacks the receipt by the trial
court of an index card which had certain chemical formulae on it for production
of amphetamines. This was for use of chemicals which are used in making
methamphetamines. The defense objection to this was that it was seized after
indictment and thus should have been excluded as being in violation of Rule
403 of the Federal Rules of Evidence.
I.
4
In November 1976, Ingram ordered a quantity of ethyl ether from the Service
Supply Company of Denver. At the same time he inquired about the obtaining
of some phenyl-2-propanone. Both of these chemicals are used in the
manufacture of methamphetamines. So following the placing of the order, the
company, as a result of prearrangement, notified the Drug Enforcement
Administration. On November 29, Ingram and another person picked up a 55gallon drum of ethyl ether at Service Supply. He was observed doing this by
agents of the DEA, who followed him to the home of Kuck's parents.
On the day (December 29) that Ingram picked up this drum complete with the
beeper, the agents followed him to his home and observed the drum being
unloaded and taken into the house. The agents then proceeded periodically to
monitor its presence to be sure that the drum did not move out of Ingram's
home. However, on January 1, the beeper signal was no longer there and
eventually the signal was found to emanate from 1229 South Bannock Street in
Denver. These were commercial premises which had been leased by Clayborne.
The agents detected the smell of ether and noted that the windows were
covered so as to prevent viewing the inside. After a day's surveillance, a search
warrant was obtained and executed on January 2. The search produced
The trial court denied the motion to suppress and did so on the basis that
Ingram lacked standing to challenge the presence of the beeper inside the oil
drum, it being the property of the DEA, and also because it was not a Fourth
Amendment question.
II.
8
Several circuits have considered the beeper problem in the light of Katz. See
United States v. Hufford, 539 F.2d 32 (9th Cir.), Cert. denied, 429 U.S. 1002,
97 S.Ct. 533, 50 L.Ed.2d 614 (1976), in which agents installed a beeper in a
drum of caffeine which had been ordered by the defendants. Visual surveillance
together with the beeper permitted the agents to isolate a drum of caffeine in the
garage of the defendants. It was held that no reasonable expectation of privacy
had been invaded, notwithstanding that the beeper was employed in a "probing,
exploratory question for evidence." The Ninth Circuit relied on the Supreme
Court's decision in Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d
325 (1974). There the Court held that the warrantless scraping of paint from the
exterior of a car parked in a public lot together with the measurement of its tire
tread was not a violation for the reason that the expectation by the defendant of
privacy was minimal. The Ninth Circuit related Hufford to the Cardwell
holding in support of its conclusion that there was little expectation of privacy
in driving along a public road. The beeper was viewed as merely an aid to or
substitute for visual surveillance. It was regarded as being similar to the use of
binoculars or trained dogs. Cf. United States v. Venema, 563 F.2d 1003 (10th
Cir. 1977), wherein we approved the use of a trained dog to detect the scent of
marijuana in a locker. That opinion could see no reasonable expectation of
privacy in the air space around the locker.
10
The First Circuit in United States v. Moore, 562 F.2d 106 (1st Cir. 1977), has
also considered the question. As in the present case, federal agents installed a
beeper in a container of chemicals which had been ordered by the defendants.
When delivery was taken a second beeper was attached to their van. The agents,
aided in part by the beepers, followed the defendants to a house. The beeper in
the container was subsequently used to monitor the presence of the chemicals
inside the house. Subsequently, a search warrant was obtained and the search
revealed the clandestine manufacture of methamphetamines. The court
distinguished between the use of a monitoring device to track a vehicle and the
use of it to monitor the continued presence of the chemicals in the house. The
latter was considered to be an invasion of the privacy of the home. It was
acknowledged that the beeper in the car constituted an intrusion, but that its use
could be justified on the basis of the mobility of the car and the lack of
reasonable expectation of privacy with respect to it. Probable cause was held to
exist with respect to the monitoring of the location of the vehicle. Once the
defendants left the vehicle and entered the house, the right of privacy existed
free from warrantless intrusion by the government. The court also observed that
the fact that the defendant initially had no rights in the chemical boxes was not
of any significance since they later obtained lawful possession, and the agents
sought to use the electronic devices after this.1
11
The court held that evidence derived from the use of the beeper while the
material was in the house had to be suppressed. The court did, however, leave
the door open to separation of the evidence illegally obtained while in the house
and the use of evidence which derived from the beeper prior to its being taken
into the house, e. g., while the material was being transported in a car. There
was a remand to the district court to determine the part of the evidence which
had to be suppressed and that which did not.
12
In the instant case the beeper surveillance evidence within the house and that
within the laboratory do not come together as one connected transaction. The
agents lost contact with the device following the movement from the house. An
independent effort was necessary to reestablish contact. So the laboratory
contact is not tainted by the surveillance within the house.
13
Our court has recently filed an opinion which, although not factually on all
fours with this case, is similar to it. We refer to United States v. Shovea, 580
F.2d 1382 (10th Cir. 1978). The beeper was there used only for the purpose of
tracking the car. Federal agents arranged a delivery to the defendant and
followed him to a house occupied by a codefendant, which home was in
Denver. A beeper was placed on the codefendant's car at that place and shortly
thereafter agents by use of the beeper were able to trace the car to the
proverbial clandestine laboratory. The court recognized that electronic tracking
devices were appropriate even without prior court approval where there was
probable cause or exigent circumstances. Probable cause was found to be
present. Circumstances relating to probable cause were substantially the same
background circumstances which are here.
14
Judge Barrett, writing for the panel, expounded the established truth that there
was minimal expectation of privacy in an automobile along a public road, citing
United States v. Frazier, 538 F.2d 1322 (8th Cir. 1976), Cert. denied, 429 U.S.
1046, 97 S.Ct. 751, 50 L.Ed.2d 759 (1977), wherein the use of a beeper on a
car was approved in connection with an ongoing kidnap plot.
15
In the case before us it was the beeper on the inside of the drum of ether which
enabled the agents to locate the laboratory. The agents in our case had to use an
airplane to pick up the beeper signal and locate the building in which the
clandestine laboratory was located. This was true because in the first instance
they were not aware that the drum had been moved from Ingram's house. Given
the proposition that the home cannot be invaded without a warrant, does it
follow that a clandestine laboratory in which amphetamines are likely to be
manufactured enjoys the same protection?
16
Although this case is factually similar to our decision in Shovea, in the Ninth
Circuit's decision in Hufford and the First Circuit's decision in Moore there are
differences. Both Shovea and Moore held that beeper surveillance without
warrants for the purpose of monitoring vehicles was valid. In all of the cited
cases, and also in the present case, there is information of the agents amounting
to probable cause to believe that a controlled substance was about to be made.
While approving the use of the beeper for monitoring the automobile, the First
Circuit in Moore distinguished the use of the beeper in the home. It held that
there could not be a warrantless search inside the house. It also held that the
lessened expectancy of privacy when using vehicles had no relevance; that
Hufford comes closest to this case since there the beeper was inside a garage.
Here the beeper revealed the presence of the drum of ether inside the
clandestine laboratory at 1229 South Bannock. Does the use in these
circumstances constitute a per se violation of the Fourth Amendment? We
conclude that it does not. The clandestine laboratory here was a commercial
establishment which was susceptible not only to outside viewing, but also to
ingress and egress of the public.2 Strict privacy as in a home was not to be
properly expected here. There is a vast difference between it and Katz. The
difference is found in a comparison of the size and extent of the intrusion in
each case. That in Katz is great because of the wholly unexpected
eavesdropping on a Conversation. We say that it was proper to use the device to
locate the drum of chemical in the clandestine laboratory at 1229 South
Bannock Street, a new location which proved to be a commercial building with
the windows covered to protect against viewing the activities and materials
inside. It was also within the law for them to make every effort to ascertain
what was going on within the laboratory including the testing of the odors and
the observations that the windows were covered. We consider the electronic
beeper as a substitute for persistent extensive visual effort. We do not say that
the laboratory stands on the identical footing as the automobile, and clearly it is
not the same as Ingram's home, which the Fourth Amendment protects from
invasion.3 We are persuaded by the fact that the intrusion of the clandestine
laboratory was slight. Also, it is not to be argued that defendant-appellant had a
justifiable or reasonable expectation that there would not be any disturbance of
privacy. Also, the use of the beeper within the laboratory was vastly different
from the use of the recording device in the telephone booth in Katz. The
invasion in Katz was of great magnitude in comparison with the intrusion here.
18
Under these special facts, then, we must hold that the slight intrusion was not
per se in violation of the Fourth Amendment and that the use of the beeper
without a warrant was not invalid. The trial court did not err in denying the
motion to suppress.
III.
19
The defendant Ingram maintains that his rights under the Double Jeopardy
Clause were violated when the court granted a mistrial. He concedes that where
the defendant moves for the mistrial the general rule is that retrial is not barred
except in the instance in which the judicial or prosecutorial error that prompted
the motion was intended to provoke the motion or was otherwise motivated by
21
Ingram maintains that the trial judge was grossly negligent in violating his right
to be present at trial by not adjourning the trial to determine whether his
absence was voluntary. We disagree. The judge was talking about the fact that
Ingram was late for the trial once and, finally, was absent altogether for a day
due to his having been arrested and placed in jail in Aurora, a nearby
community. The court had gone ahead with the trial in his absence, but once the
judge found out that his absence had been involuntary, he granted the mistrial
on the motion of the defendant. Under these circumstances, we fail to see that
there was either invalid coercion exercised by the court or that there was
negligence or other misconduct.
IV.
22
Ingram's final contention is that the trial court erred in receiving Exhibit 14, an
index card with some chemical formulae having to do with chemicals which
could be used for making amphetamines. This was taken from Ingram's person
when he was arrested two months after the indictment. At the first trial the
Exhibit was excluded because Ingram was being tried with Clayborne. At the
second trial Ingram was tried alone and the Exhibit was received. The
defendant objected on the ground that it resulted from investigation subsequent
to the indictment and was inadmissible under Rule 403, which declares that
relevant evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice or confusion.
23
We agree with this ruling and would take the same position in the case at bar if
the proposition were to be seriously argued
There is no evidence which resulted from the clearly illegal monitoring of the
inside of the home